Negligent nondisclosure cases are typical negligence cases. There are four elements that need to be exhibited:¹

1. Duty: Duty is a requirement that a physician act as a minimally competent, similarly trained, reasonable physician in similar circumstances would act while disclosing information.
2. Breach of duty: It refers to failure to meet the minimal standard of care.
3. Injury: It is the harm that befalls the patient.
4. A causal relationship between the breach and the harm is shown when the patient reasonably declares that he would have refused to undergo the procedure if he/she had known the true nature of the risks.

Once all these four elements are proven, the physician is liable for the tort of negligent nondisclosure. The proof lies in the testimony of the complainants expert witness, who is required to present the following information:2

1. Define the duty: The details that constitute an appropriate informed consent discussion.
2. Identify the breach: The details that were omitted unjustly.
3. Define the harm: The injuries that were suffered.
4. Identify alternatives: The alternatives that a reasonable patient might have selected instead have to be defined, such as a different procedure, a different physician or a different facility.

The plaintiff then adds that he/she, being a reasonable patient, would have refused to give consent to the procedure.

References

1. Ey RM. “Cause of Action Against Physician for Failure to Obtain Patient’s Informed Consent,” 5 Causes of Action § 1 (Updated September 2010).

2. Miller-McGee v. Washington Hosp. Center, 920 A.2d 430, 440 (D.C. 2007).